Non Raceday Inquiry – Written Reserved Decision dated 13 May 2022 – David Jensen

Racing Integrity Board Decision
Between: Racing Integrity Board (Ms G Murrow) RIB Investigator – Informant
And: David Jensen – Class B Licensed Trainer – Respondent
INFORMATION NO. 15756
Inquiry held at Awapuni Racecourse 6 May 2022
Adjudication Committee:
Hon JW Gendall QC (Chair)
Mr T Castles (Member)
Present:
Mr D Jensen, Respondent (assisted by Mr N Kirton)
(Ms Murrow had filed written submissions and her attendance was excused)

RESERVED DECISION OF ADJUDICATIVE COMMITTEE DATED 13 MAY 2022

1. Mr Jensen is a Class B Licensed Trainer and operating at Foxton Racecourse. He was charged with a breach of Rule 802(1)(a) of the NZ Thoroughbred Racing Rules in that:
a) On 24 February 2022 he attended at the race meeting at Whanganui racecourse and knowingly failed to comply with a NZTR Directive (in line with the governance of the Covid 19 Public Health Response Act 2020).

2. Rule 802(1)(a) relevantly provides that if “person commits a breach of these Rules who acts in contravention or fails to comply with any provision of these Rules, or any Policy, Notice, Direction, Instruction …, requirement …, made or imposed under these Rules”.

3. A Directive was issued by NZTR to all Licensees on 26 November 2021 and required “that all people entering the [race] meeting provide their “My Vaccine Pass” at entry to prove that they were double vaccinated against the Covid 19 virus”. The directive stated that a “failure to adhere to this Directive (and the protocols set out…) constituted a breach of the Rules of Racing (Rule 801 – Serious Racing Offence) or may be a breach stipulated as a Minor Infringement”.

4. Mr Jensen did not have such a pass as proof of double vaccination, or any exemption issued by the Ministry of Health. That was because he was not double vaccinated. No such pass or proof was or could be held. He entered Whanganui Racecourse on the 24 February 2022 as a Trainer to attend the race meeting on that day.

5. Mr Jensen admitted the charge. By consent, a penalty decision was made by an adjudication Committee of the RIB on the papers on 11 April 2022. As that decision recorded, there had been several directions that Mr Jensen submit his penalty submission, but none were received. Mr Jensen later submitted that he did not know of the directions, so the Committee determined that in fairness to him, to grant a rehearing under Rule 923(1) to rectify any mistake.

6. The rehearing of the penalty decision has occurred on, 6 May 2022. Submissions, both in the writing and orally, have been received from both Mr Jensen and his Lay Representative, Mr Kirton. The Informant’s written submissions, earlier received, were also before the Committee, and Ms Murrow’s attendance had been excused.

7. The Submissions that are now presented by the Lay Representative put forward an argument, set out below, which had not been advanced by Mr Jensen in his written submissions, nor signaled to the Informant, who has had no opportunity to respond to them. But the intricate argument of Mr Kirton is rejected as we later recorded, if is not necessary for the penalty hearing to be prolonged by further submissions from the Informant. However, we direct that the directive that the written submissions of Mr Kirton at the hearing are to be forwarded to the Informant so as that it may be able to meet any later action if it arose. That is because Mr Kirton then delivered a warning statement to the Committee “would encounter significant procedural Appeal and Review challenge should it proceed to impose a penalty outside the Minor Infringement penalty system”.

Essential facts
8. Mr Jensen Holds a Class B Trainer’s License which is issued to Trainers who do not train more than six horses, which shall include those in which he/she may have an ownership interest (Rule 304(c)). He says he trains 5 horses for himself and owners.

9. On 24 February 2022 he attended a race meeting at Whanganui Racecourse, he said in order to assist with a fractious horse. He was not double vaccinated. When asked by Stewards for his required pass he said that he left it in his car. This explanation was false. He did not have such a pass. He was asked by the Stewards to retrieve his “pass” and return. He then gave a different explanation, namely that he thought his “pass” was in his wallet and had been left at home. Mr Jensen then said that his cellphone was “flat”, so he was unable to show his pass in that form. He then left the course without returning, despite being requested, to the Stewards’ Room.

10. The RIB Investigator required Mr Jensen to email the pass he claimed he had by the end of the day. At 8pm that day he advised the Investigator that he had no Wi-Fi access so was unable to send his pass. An arrangement was made the for him to meet the NZTR employee who checked COVID passes, the next day. Mr Jensen did not attend. But at approximately noon on the morning of 25 February 2022, he sent a vaccine pass to the Investigator, that had not existed the previous day. When further questioned as to whether he had such a pass previously, he responded in an agitated and aggressive fashion and terminated the telephone call.

11. Later that day he admitted to the Investigator that he had obtained his second vaccination only on that morning of 25 February 2022. He admitted that on the previous day of 24 February 2022 when he entered the racecourse, he had only received one vaccination, and did not have the required pass, or proof.

12. Enquires disclosed that he had also attended other race meetings (on 2 January 2022, and 11 February 2022 at Awapuni) when he did not comply with the NZTR Directive, with proof on double vaccination with a “My Vaccine Pass”. So, his disobedience of the Directive in fact had occurred on 3 occasions.

Penalty Submissions
13. After referring to the principles and considerations discussed by an Appeal Committee in RIU v L – where all are well known to the Committee – the Informant summarised these as needing to proportionally balance:

• The public interest
• The interest of the offender
• The interests of the profession
• The seriousness of the offending
• Aggravating and mitigating factors

14. The Informant submitted there was a need to deter others from similar offending – that is, for disobedience of NZTR Directives which required compliance by Licensees. She referred to the provisions in Rule 803(1), namely disqualification or suspension up to 12 months, fine not exceeding $20,000.

15. It was submitted by the RIB, that “the penalty should be a fine with serious consideration to a period of suspension or disqualification”.

16. The Informant has referred to comparable cases of RIB v Keegan (4-month suspension and $3,000 fine for a Licensed Class A Trainer), RIB v Hewitson, (a fine of $2,400 but no suspension (as his license had expired) where a domestic regional boundary restriction was crossed; RIB v Harvey (fine of $2,700 for crossing a domestic boundary). In a further somewhat similar case to the present of RIB v Swann where a Licensed Class B Trainer without a ‘My Vaccine Pass” was suspended for 3 months and fined $1,000.

17. Mr Jensen in his written submissions, said that:
• He was training 5 horses, had 2 in pre-training and breaking in. Any suspension would seriously disadvantage him and his owners.
• He had no previous breaches of the Rules of Racing, despite a lifetime in racing.
• He was in a ‘precarious financial position’ with earnings below the minimum wage level and would have to borrow in order to meet any substantial fine which would cause him substantial hardship if being other than ‘small’.
• His neglect in ‘not obtaining a double vaccination pass was a careless mistake’.
• Companions and others to whom he has spoken regarded suspension of 3 months and a fine of $1,000 as outrageous.
• Any penalty had to be disproportionate to the level of breach.

18. As mentioned, Mr Kirton sought to argue that the only penalty that the Committee could impose was $50 for a Minor Infringement under Rule 926. He contended:
a) The RIB Informant has “inflated the charge as to penalty, under the Rule 803(1)”, and incorrectly sought to invoke that provision because the penalty provisions are expressly provided elsewhere – that is in the NZTR Directive and are Minor Infringement penalties.
b) Mr Jensen only admitted that he failed “to comply with the Covid 19 Directive, Policy as instruction” and therefore, he argued, he failed to comply with the Directive par. 2.1(f)(s) that he did not allow the “My Vaccine Pass” to be scanned or sighted”.
c) Mr Kirton’s argument then inferred to Para 7.1 of the Directive which he says leads to the outcome of a Minor Infringement penalty of $50 only.

19. We do not accept this opportunistic argument. It is flawed and is not upheld. The starting point for penalty is the provision of the NZTR Directive. His offence is failure to adhere to the Directive and the protocols. It says that such a failure may breach the Rules of Racing Rule of Racing Offences or may, not must, be a breach stipulated as a Minor Infringement. The Informant may elect to proceed on either basis. Rule 7.1 states that failure to comply with “CERTAIN components” of the Directive will attract a Minor Infringement penalty”. But this only where: there is
a) “Failure to clearly display NZTR identification” or
b) Failure to follow a clear instruction of compliance as provided by an RIB Steward or Investigator or Club or NZTR Official.

Mr Kirton seeks to invoke a second “failure” by contending that it was the failure to obey the instruction directive or the requests of the Investigator to produce the pass that requires the Minor Infringement regime to be adopted. The Directive that was disobeyed was that of the NZTR – not an instruction as provided by the Investigator. Obviously, there was a request by an Official for a person to produce proof of a person’s double vaccination status. That is impossible where, as here, the person is not double vaccinated. That is his offence. Failure to provide such proof (none existing) was in breach of what the Directive, not the Investigator, says.

20. The purpose of clause 7.1 of the Directive is to provide for some situations, such as a Trainer entering a weigh-in room when instructed not to do so or failing to wear a face covering in certain areas, or entering the Jockeys’ Room when directed not to do so. There would also have been other situations. But the essential foundation of the Directive was to prevent the entering of race meetings by those who were not double vaccinated, and as clause 7.3 makes clear.
“A false statement regarding vaccination status to the NZTR, the RIB or a racing club will also be regarded as a Serious Racing Offence”.
Nothing could be clearer. What Mr Jensen did when telling falsehoods to the Officials about his status. He entered the course in breach of the Directive. The RIB chose to present the Information as it was entitled to do rather than adopt the Minor Offence system under Rule 926 (which would have been totally inappropriate). It was entitled to regard this action as bearing a “certain component” were outside the 2 “failures” referred to in clause 7.1 to require Minor Infringement procedure. Mr Jensen was properly charged with knowingly failing to comply with the NZTR Directive. He admitted the charge, and attempts by him, or his Lay Representative, to now endeavor to use the Minor Infringement provisions in clause 7.1 is misguided Rule 803(1) of the Rules of Racing.

Penalty Reasons

21. The issue is not one of being unvaccinated nor having a nominated pass. But rather the deliberate, dishonesty, and disobedience of the Rules of the profession. A Trainer did not have to be double vaccinated, but he/she was required to obey the Rules of the Code. If they wished to have the privilege of being licensed by the profession and attending race meetings, they had the obligation of complying with the Rules of that profession.

22. In response to questions from the Committee, Mr Jensen acknowledged that he earlier attended other race meetings (he said 2, although it may have been 3) in breach of the Directive of which he was aware.

23. In his written submissions he said not having a second vaccination was a “careless mistake”. It emerged that he had had one vaccination but not the required second one until 25 February 2022, the day after the offence. His reference to having a “card in his wallet” which he said to the Investigator to deflect the enquiries– this was only a card stating that he had a second vaccination appointment for 29 December 2021. Which was apparent when the Committee requested to see the card. But there never was a second vaccination then. We do not accept that his actions going onto the racecourse on 24 February (or earlier on other occasions) was a result of carelessness. He knew that he had only had one vaccination and said he knew what the NZTR Directive was. Those other occasions were not of course the subject of charges, but in a sense may be balancing aggravating factors factor that might offset mitigating matters.

24. Given the statement made by Mr Jensen that others have said to him that any significant suspension or fine was “outrageous”, it might be helpful to him and those who support him, to be aware of some of the other penalty decisions for similar breaches of Covid Directives in the various jurisdictions. Some are set out as follows:
a) New Zealand decisions of RIU v Harvey and RIU v Hewitson resulted in fines of $2,400 and $2,700 and related only to unauthorised crossing of temporary boundary restrictions
b) RIU v Keegan involved a Trainer entering a racecourse in defiance of the Directive and obtaining and presenting forged documents to avoid apprehension – suspended 4 months and fined $3,000
c) RIU v Swann – attending a racecourse and presenting an altered document (not having a valid pass) in order to mislead the Investigators – suspended 3 months and fined $1000
d) Four Australian cases which resulted in the suspensions of 3 months of Jockeys and Trainers plus fines of $8,750 and$15,000 for two Trainers.
e) Two Irish cases where Trainers were fined £3,500 and £4,000 plus a 3 month suspension in one case.

25. These examples may provide some illustration that the New Zealand approach has been relatively modest.

26. Mr Jensen’s offence is not in the same egregious category as that of Ms Keegan which involved forgery. But it was more serious than just crossing unauthorised boundaries. It bears some similarity to that of RIB v Swann where starting points of a 4-month suspension and $1,500 fine were adopted, with the outcome of 3 months suspension and $1,000 fine. In that case there existed an aggravating factor of deleting a date from an electronic record, whereas Mr Jensen’s actions did not go that far. Although they were aimed at misleading the RIB, making false statements, and securing the document the next day that had not previously existed.

27. The ultimate sanction imposed must reflect all the circumstances of the breach, the offender and balance mitigating and aggravating factors, as well as allow room in appropriate cases for any special leniency as compassionate discretions.

28. For Mr Jensen, we adopt a starting point of 12 weeks suspension and a $1,000 fine. From that there will be concessions to reflect mitigating and personal matters to Mr Jensen. Although he has a blameless history of not having been being charged with breaches of the Rules, there were similar deliberate actions over 2 months breaching the Directive. These are measured against the level of discount to be afforded. On the other hand, we recognize that Mr Jensen is a young Trainer and a developing asset to horse racing in the Central Districts. He has served racing well until now in several respects. He has, it is to be hoped, a promising future. His personal family and financial circumstances are recognised and were explored in questions by the Committee, but do not require mention of the details in this decision. Of course, any suspension or fine imposes a punishment and disadvantage to Mr Jensen. But that is often the inevitable result of a person in whatever profession they may practice having to face san ctions for their breach of the Rules of that profession. It is a consequence of their actions. The overall interests of the professional and the need to deter others from breaching the Rules, are significant factors.

29. Balancing all considerations as best we can, the Committee allows significant discounts of 33⅓% from a suspension period of 12 weeks, so as to be 8 weeks. It allows 25% discount from the fine of $1,000, so as to be $750.

30. As Mr Jensen has already served to 2 weeks of suspension prior to the rehearing being granted, the term of the suspension imposed is therefore from 5 pm Monday, 16 May 2022, until 5pm Monday, 27 June 2022.

31. For the assistance of Mr Jensen, we make the following comments. As a class B Trainer, a horse being spelled is not being “trained” (Rule 304(2)). And where a person holds a Trainer’s License, and has been suspended, he may seek to obtain the written consent of the NZTR to “work or assist in connection with the care, control and training of a horse”. Whether such consent was given is the prerogative of the NZTR.

Summary

32. Mr Jensen’s Trainer’s License is suspended for 8 weeks (2 already served) from 5pm Monday, 16 May 2022 until 5pm Monday, 27 June 2022.

33. He is fined $750.

34. There is no order for costs

Dated 13 May 2022

Signed:

Hon JW Gendall QC (Chair)